Daily Dose

• Editorial: Guns: The Next Step [WP]
• Editorial: A Death Penalty Puzzle [WP]
• Bush Administration: Justifying Torture [Seattle Post-Intelligencer]
• Editorial: Scalia’s Selective History [Chicago Tribune]
• A Less Deferential High Court [Christian Science-Monitor]

Yoo Can’t Handle the Truth

Yesterday, a House Judiciary subcommittee questioned two notorious architects of the Bush administration’s harsh interrogation policies, John Yoo and David Addington. Mr. Yoo, who is now a professor at Berkeley’s Boalt School of Law, worked for the Justice Department’s Office of Legal Counsel and was the author of the now infamous “torture memos” that paved the way for abusive interrogations at Guantanamo and elsewhere. Mr. Addington is Vice President Dick Cheney’s chief of staff and serves as his most trusted legal advisor.

Facing tough questions from committee Democrats regarding their attempts to justify the Bush administration’s broad use of executive power and disregard for domestic and international law in shaping interrogation policy, the two men remained defiant – despite the fact that the Justice Department has since abandoned many of the policies they worked so hard to rationalize. While Mr. Yoo sheepishly invoked executive privilege to avoid answering the committee’s most piercing questions, Mr. Addington displayed attributes of his boss and mentor by flouting the authority of committee members, attacking anyone who questioned his reasoning.

According to an article in the Los Angeles Times, several exchanges between Mr. Addington and committee Democrats grew quite heated, prompting Subcommittee Chair Jerrold Nadler (D-NY) to call Mr. Cheney's confidant “smug.” When the representative from New York asked Mr. Addington if he would bear any responsibility should the interrogation program he designed be deemed illegal, Mr. Addington curtly responded, “Is that a moral question or a legal question?” He went on to assert that he would in fact not bear any responsibility, legal or otherwise.

The arrogance displayed by these two men yesterday serves only to highlight the superciliousness of the Bush administration in its countless abuses of power over the past seven years. Under the guise of its “War on Terror,” this administration has attempted to claim for itself unfettered authority, as if our system of checks and balances was merely a suggestion by our Founding Fathers.

The audacity of the administration is shown most clearly through an exchange between Congressman Bill Delahunt (D-MA) and Mr. Addison. The representative from Massachusetts asked if waterboarding was specifically discussed during meetings regarding the interrogation programs. Mr. Addington apparently felt that this issue was a matter of national security and, in a dodge that would make his boss proud, he responded, “I can't talk to you…Al Qaeda may watch these meetings.”

Daily Dose

• Editorials: Supreme Court Handgun Decision [WP, NYT]
• Coming Next, Court Fights on Guns in Cities [NYT]
• More Interrogations for Interrogators [LA Times, McClatchy-Tribune]
• Editorial: Judicial Activism by Conservatives [LA Times]

Supreme Court Reinterprets 2nd Amendment

As most of you have already heard, the Supreme Court released its long-awaited decision in District of Columbia v. Heller today, in which it struck down DC’s handgun ban in a split 5-4 decision. Despite the fact that no federal court in the history of our nation has ever understood the Second Amendment to grant an individual right to bear arms – at least until last year’s DC Circuit Court decision – the majority decided not to rely on precedent and instead simply reinterpret the Constitution as they would like it to read.

In a Washington Post editorial, Colbert King wrote that Scalia "said that the Constitution doesn’t allow 'the absolute prohibition of handguns held and used for self-defense in the home.'" He went on to discuss Scalia’s determination that "the American people consider the handgun to be the quintessential self-defense weapon," and asked, "If machine guns one day should become the weapon of choice for home protection -- what say ye then, Justice Scalia?"

In a statement released this afternoon, Alliance for Justice President Nan Aron said, "once again, Justice Scalia’s Originalism is…little more than a convenient buzzword…His latest opinion, in DC v. Heller, exposes [his] hypocrisy and results-oriented…approach to the law." She went on to say that, "today's decision…should come as no surprise to those who recognize that Justice Scalia and his conservative counterparts, for all of their professed deference to legislatures and precedent, are willing to reject even those precedents they penned themselves when it interferes with the policy results they seek."

Daily Dose

• Editorial: Under Bush, Justice took partisan turn [Atlanta Journal-Constitution]
• DC Gun Ban Overturned [WP, Reuters, The Hill]
• High Court Rejects Controversial Campaign Finance Law [AP, WP]
• Judge White Finally Confirmed [Detroit News]

Now Hiring: Progressives Need Not Apply

The Justice Department’s Inspector General, along with the Office of Professional Responsibility, released a report yesterday in which they determined that department officials illegally applied political considerations in awarding summer internships and entry into the department’s elite honors program.

According to an article in the Los Angeles Times, “scores of highly credentialed young lawyers and law students were denied interviews for coveted positions…because of an illegal screening process that took political and ideological views and affiliations into account rather than merit”

The American Constitution Society released a statement yesterday expressing dismay that affiliation with the organization, which has chapters at law schools throughout the country, proved detrimental to applicants to the DOJ’s internship and honors programs. As the report points out, almost every applicant who noted their ACS membership on their resumes were “deselected” for interviews, while hardly any applicants belonging to the ultra-conservative Federalist Society were passed over.

While rumblings of politicization at the Justice Department have persisted for years, investigations into the damage this hyper-partisanship has done to the department are only now being released. According to an article in the Washington Post, “former Justice Department officials from both Democratic and Republican administrations said [yesterday’s] study underscores” the challenges facing the next president.

Nicholas Gess, an attorney who worked for the DOJ under President Clinton said that “the Honors Program at DOJ has always been the ‘A-list.’ The next attorney general will be stuck with many from the ‘B-list.’”

Stalemate Over 6th Circuit Noms Comes to an End

Despite all the fury from Republicans on the Senate Judiciary Committee, Sixth Circuit Court of Appeals nominee Helene White sailed through her confirmation vote yesterday on the Senate floor, 63-32. Although debate on her nomination was expected to last as long as four hours, only five senators spoke and the vote was called after only an hour of discussion. Most GOP members of the Judiciary Committee continued to oppose her nomination, with only Senators Orrin Hatch (R-UT) and Jeff Sessions (R-AL), who voted against her in committee, supporting her confirmation.

Sen. Hatch, who chaired the Judiciary Committee in 1997 when Judge White was initially nominated to the seat, refused to give her a hearing for almost four years – she still holds the record for the longest pending circuit court nomination in Senate history. Despite his history of opposition to Judge White, Sen. Hatch voted twice this month in favor of her appointment to this long-vacant seat – breaking ranks with the likes of Senate Minority Leader Mitch McConnell (R-KY) and Ranking Member of the Judiciary Committee Arlen Specter (R-PA). Apparently he realized that calling for quick confirmations of the president’s nominees while stymieing the confirmation of Judge White might prove a tad hypocritical.

The Senate also voted yesterday to confirm Raymond Kethledge to the final vacancy on the Sixth Circuit Court of Appeals and Stephen Murphy to the US District Court for Michigan’s Eastern District.

Floor Debate Starts on Sixth Circuit Nominees

The full Senate has started to debate the nominations of President Bush's Sixth Circuit nominees Helene White and Raymond Kethledge as well as several district court nominees. This evening's debate is expected to last at least four hours and as such, no votes are expected before 9pm. We will be sure to update our readers with news from today's debate (and possible vote) tomorrow.

You can also watch the debate yourself on C-SPAN here.

Daily Dose

• Gitmo Detainee Loses “Enemy” Label [WP, NYT, LA Times]
• Supreme Court Talks Sonar [WP, NYT]
• Death Row Inmate Gets High Court Hearing [NYT, AP]
• Reid Announces Senate Votes on Judges [The Hill]
• Constitutional Rights Face Tough Test in Time of War [Las Vegas Sun]
  

More lies about Boumediene…

On Saturday, another former Justice Department official came out publicly and criticized the Supreme Court’s recent Boumediene decision. This time it was Andrew McBride, a former federal prosecutor and associate deputy attorney general who condemned the Court’s so-called rejection of “the considered judgment of…Congress and the president on an issue of national security.”

In a Wall Street Journal editorial, Mr. McBride writes that the decision to extend habeas rights to Guantanamo detainees was “a watershed in judicial hubris…continuing [the] trend in our society to convert every form of decision making into a lawsuit.” I guess the nine justices of our highest court were mistaken – interpreting the Constitution isn’t part of their job description after all.

We’re also sure Justice Kennedy and his colleagues will be happy to hear that Mr. McBride doesn’t believe they are “competent to make judgments about who is or is not an enemy combatant” and that they are confused by “the civilian criminal justice system and the waging of war.”

Of course, we find ourselves repeatedly questioning Mr. McBride’s competency – especially considering his many misstatements about Boumediene’s implications. It’s hard to believe that a man with such a long and distinguished legal career would actually believe that providing detainees the basic ability to challenge their detention in federal court is the same as imposing the “civilian criminal justice model” on the Guantanamo detention facility.

Probably the most bizarre aspect of Mr. McBride’s editorial is his attempt to draw a parallel between the treatment of Nazi prisoners of war and those being held at Guantanamo. “The idea of our judiciary protecting the ‘rights’ of the Nazis or the Viet Cong…is every bit as absurd as it sounds. But had Boumediene been decided in 1940, more than 400,000 Axis troops held…in this country during World War II would have had a right to challenge their detention in federal court.”

While this analogy may be rousing, it is also exceedingly flawed. Relatively few Guantanamo detainees were captured on the battlefields of Iraq and Afghanistan. Actually, Lakhdar Boumediene was arrested in Bosnia on suspicion that he was involved in a plot to attack the US embassy there – despite the fact that a court had already determined there was no evidence to support the charges.

Perhaps a more fitting comparison would be the internment of Japanese during World War II. These men – some actual citizens of the United States who had no connection to Japan’s military – were rounded up without charge and placed in prison camps until the end of the war. Perhaps if Boumediene had been decided in 1940, as Mr. McBride muses, we could’ve avoided one of the most disgraceful periods in American history.

Daily Dose

• Editorial: The Supreme Court and Workers [NYT]
• To the Trenches— the Tort War Rages On [NYT]
• Congressional Investigations in Administration Policies [AP, WP]
• Editorial: Cities will pay a heavy price if handgun ban is overturned [Atlanta Journal-Constitution]

The Week Ahead

We anticipate another busy week this week. Congress is holding a number of votes and hearings heading into the July 4th recess, and the Supreme Court is wrapping up its 2007/08 term.

These are some of the highlights:

Supreme Court: Justice Watch will be keeping a close eye on the outstanding cases to be decided before the end of the term. After today’s session, we are still awaiting the release of seven decisions. The Court has already added an extra decision day, scheduled for Wednesday at 10 a.m., and many anticipate another on Thursday.

Of the seven remaining cases, the most significant might be D.C. v. Heller, better known as the D.C. handgun case. While the case certainly bears some weight for residents of the District, Heller also carries with it implications on future interpretations of the Second Amendment, and could profoundly affect other big cities around the U.S. There is a lot of speculation that the majority opinion will be authored by Justice Scalia; he is the only member of the Court who has not written a majority opinion for a case from the March sitting.

Also on the docket will be Exxon v. Baker, a case regarding the 1989 Exxon-Valdez oil spill in Alaska. Exxon objects to the $2.5 billion in punitive damages awarded by the Ninth Circuit, and further claims that punitive damages are not legal in maritime cases. Respondents argue that, despite payment of compensatory damages and other fines, many people lost life savings, oil still remains in the water, and fish stocks and marine habitats have been impaired. Finally, Davis v. FEC represents a potentially important case in the realm of campaign finance, and may have an impact on the interpretation of the First Amendment.

Congress: Both the Senate and House Senate Judiciary Committees are set for action on Thursday. While the Senate committee is voting on four New York District Court nominees, the House committee will be holding another hearing on interrogation in Guantanamo Bay, dovetailing with last Tuesday’s “origins of aggressive interrogation” hearing in the Senate.

Meanwhile, the full Senate will vote on two Michigan nominees--Helene White and Raymond Kethledge--to the Court of Appeals for the Sixth Circuit, perhaps as early as tomorrow. The Senate is also expected to vote on legislation updating the Foreign Intelligence Surveillance Act, which, after several amendments and compromises, has already been approved by the House.

It will be a busy week for us here at Justice Watch, so make sure to check back here for updates and commentary on what’s going on in the courts and on the Hill.

Isn't it Ironic?

You know how the word “irony” is so hard for some people to define? Well, if the dictionary’s meaning has left you unsatisfied, look no further than the Concerned Women for America’s (CWA) press conference on Judge Robert Conrad’s nomination to the Fourth Circuit. Yesterday afternoon, in a nearly empty room in the Senate’s Dirksen Building, Judge Conrad’s cronies were trotted out one by one to discuss his merits. But despite CWA’s sponsorship, the group barely had a presence; in fact, there were hardly any women in the room at all.

Senators Arlen Specter (R-PA) and Jeff Sessions (R-AL) added to the irony; the issues they pressed upon so relentlessly had little to do with Judge Conrad’s legal viewpoints. Apparently they don’t see any need to discuss the legal views of a potential federal appeals court judge. But, thanks to Senator Sessions, we now know what a gifted point guard Judge Conrad was for the Clemson basketball team. Too bad his court vision nowadays leaves something to be desired.

Judge Conrad’s record on the U.S. District Court for the Western District of North Carolina is troubling to say the least. Of the 12 employment discrimination cases he presided over (10 on the district court and two sitting by designation on the Fourth Circuit), he either wrote or joined summary judgment opinions in 11 of them, effectively taking the jury out of the case and preventing the plaintiff from receiving a fair shake. When Conrad was on the Fourth Circuit, he took part in an environmental decision contradicting a district court finding that the Army Corps of Engineers had violated the Clean Water Act. It was a decision that, according to his dissenting colleague, Judge King, “undermine[d] the CWA’s primary purpose of protecting the environment.”

Of course, our favorite performance of the day was Curt Levey’s. We weren’t too surprised when Mr. Levey, a spokesman for the Committee for Justice, walked out and started to take part in some good, old-fashioned ad hominem attacks.

Mr. Levey declared AFJ pro-polygamy and biased against Southern white males. Why go with the facts when you can fall back on tired old talking points designed to appeal to the right-wing base?

Mr. Levey’s reading of AFJ’s reports opposing the nomination of Judge Conrad is as twisted as his reading of the Constitution. He said that AFJ and other groups have accused Judge Conrad of being anti-Catholic. While it’s sad that this sort of distortion even has to be dignified with a response, AFJ does not believe Judge Conrad to be anti-Catholic. We do, however, know he called Dead Man Walking author Sister Helen Prejean a “church-hating nun,” and that such vitriolic pronouncements do not speak well of his respect for views other than his own.

As much as Mr. Levey and the rest of the pro-Conrad bunch cry foul, this press conference signified just how much the Republicans relish in politicizing the process. Sen. Richard Burr (R-NC) observed that “No individual should have their lives on hold for 338 days like Bob Conrad.” His colleagues at the podium didn’t seem to share that stance during the Clinton administration. Sen. Elizabeth Dole (R-NC), along with Senators Sessions and Specter, didn’t take part in any press conferences decrying the 542 days Kathleen McCree’s nomination languished, or the 1,532—yes, 1,532—days endured by Helene White.

Senators Specter and Sessions should easily remember Judge White: they voted against her renewed nomination in committee just last week. Why vote against Helene White? Because, unlike Judge Conrad, she isn’t one of their own—an ultraconservative bent on pursuing an ideological agenda from the bench. Senate Republicans have been talking a lot lately about judicial emergencies and swift confirmations, but their actions belie their words. For all of their rhetoric, Senate Republicans have no interest in reducing the federal judiciary’s vacancy rate—their only concern is ensuring a complete conservative takeover of the federal bench.

A little too ironic, don’t you think?

Daily Dose

• Supreme Court Rules on Self-Representation [WP, NYT]
• Supreme Court Produces Step Forward in Age Discrimination Suits [WP, NYT]
• FISA Update [AP, LA Times, WP, NYT]
• Editorial: A Better Surveillance Law [WP]
• Fourth Circuit Stalemate Continues [Asheville Citizen-Times, Winston-Salem Journal]
• Editorial: Bad Blood and an Empty Chair [WP]
• Case Against Federal Judge OK’d [Times-Picayune]

Senators Take On Mandatory Arbitration

While not necessarily front-page news, the Senate held a hearing yesterday on a bill that would ban mandatory binding arbitration clauses (bear with us!) in nursing home contracts. According to an article in the Green Bay Press-Gazette, the bill’s sponsors, Sen. Mel Martinez (R-FL) and Sen. Herb Kohl (D-WI) worry that such clauses restrict the options available to patients and their families who receive sub-standard care at these facilities.

Former Chairman of the Republican National Committee Sen. Mel Martinez’ reasons for sponsoring this bill arise from his own personal experiences. According to the article, the senator “remembers signing a stack of documents when he briefly placed his father in a nursing home…[and] wonders if the documents included a mandatory arbitration agreement that would have prevented him from taking the facility to court if his father received bad care.”

While not a particularly sexy subject, sneaking mandatory binding arbitration clauses into employment and consumer contracts is an extremely troubling and increasingly common practice. Odds are you've signed one of these agreements yourself. When you got a new credit card, or signed up for a cell phone contract, you probably agreed to a mandatory arbitration clause buried somewhere in the fine print.

Companies foist arbitration agreements upon consumers and workers, who are given little opportunity to grasp the full implications of the agreements and little choice but to sign away their rights before a dispute even occurs. Because the company is often the one to hire the arbiters – private businesses that profit from arbitrating disputes – the result is a system of private justice that is far less fair than our courts.

Alliance for Justice is working both on local and national levels to pass legislation to ensure workers and consumers have the right to bring their claims in a courtroom. Access to our courts is a central concept in our democracy, and limiting it goes against our most basic tenets of justice. To learn more about mandatory binding arbitration, you can read our fact sheet here.

Daily Dose

• Editorial: Clinton on the Supreme Court? [USA Today]
• Investigators Look for Favoritism in Justice Department Grants [WP]
• Gitmo Habeas Update [AFP, US Daily]
• Mandatory Binding Arbitration for Nursing Homes [Green Bay Press Gazette]
• Editorial: Terrorized by the Supreme Court [Chicago Tribune]
• Tortured Detainees [McClatchy Newspapers]

Yoo Applies Famous Tortured Logic to Boumediene Decision

It seems that John Yoo’s tenure at Berkeley’s renowned Boalt School of Law has done nothing to improve his warped legal thinking. Mr. Yoo, whose work with the Justice Department’s Office of Legal Counsel included writing the now infamous “torture memos,” wrote an editorial yesterday for the Wall Street Journal in which he categorized the Supreme Court’s habeas decision last week as “judicial imperialism of the highest order.”

Mr. Yoo made headlines back in April when an 81-page memo he authored for the Office of Legal Counsel which attempted to justify the Bush administration’s “enhanced interrogation” policies was released to the public. At the time, many members of the legal community called for Yoo to be disciplined – and even fired – by Berkeley administrators. But Yoo and his supporters pushed back, demanding that he should not be held responsible for counsel he provided at the behest of his “client,” the president. **Of course, the nature of Yoo's role and who his client ultimately was – the president or the American people – is a question for another day**

It seems odd then, that he felt inclined yesterday to defend the policies of the president, who is no longer his client, by claiming that last week’s 5-4 decision exceeded the Court’s authority by defying “the considered judgment of the president and Congress…all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.”

Mr. Yoo even goes so far as to say that last week’s decision “should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.” Really? It seems his math is as fuzzy as his grasp of constitutional law. As Alliance for Justice President Nan Aron noted, this split decision serves only to highlight the precarious balance of the Court – not discredit its existence.

Mr. Yoo’s laughable analysis of the Boumediene decision shows how little regard he has for facts and just how far he is willing to go in justifying the Bush administration’s claims of unfettered executive power.

On his Salon.com blog, civil rights attorney Glenn Greenwald responded to Yoo’s editorial, saying “It takes an indescribably authoritarian mind to believe that one’s own Government should have the power to put people in cages for life without having to provide them any meaningful opportunity to prove that they did not do what they are accused of.”

In response to Yoo’s assertion that last week’s decision provides captured al Qaeda operatives the same rights as American citizens, Mr. Greenwald asks, “What minimally self-respecting law professor would be willing to make this claim with a straight face?”

The Supreme Court’s 5-4 decision in Boumediene showed that despite the efforts of lawyers like Mr. Yoo, our country is still rooted in the rule of law – something we seem to have forgotten during the dismal years of the Bush administration. The right of habeas corpus is so central to our system of government, it was included separate from the Bill of Rights and incorporated in the actual body of our Constitution. As such, the Court’s attempts to check the excesses of our executive is not only justified, but required by this nation’s most sacred document.

Tables Turn: The Interrogators Face Interrogation

When it came to light in 2002 that former General Counsel for the Department of Defense William “Jim” Haynes put together the policies that advocated torture of U.S. detainees in Guantanamo Bay, Iraq, and Afghanistan, it would have been easy to assume his time as an influential member of the U.S. government was over. But lo and behold, there he was in 2006, still a Bush nominee for the Fourth Circuit of the U.S. Court of Appeals.

Alliance for Justice knew that a man who was so willing to eschew the Geneva Conventions and exhibit a lack of regard for the U.S. Constitution clearly was not fit for a lifetime seat on the federal bench. The Senate Judiciary Committee agreed; Haynes’ nomination was opposed strongly by Democrats and Republicans alike—even Senator Lindsey Graham (R-SC), a devout conservative, didn’t want to see him on the bench. When it became clear he would not be confirmed, his nomination was ultimately withdrawn. Crisis averted. (Well, that crisis anyway.)

Now, in the wake of the last week’s Guantanamo Bay decision from the Supreme Court, the Senate Armed Services Committee—chaired by Senator Carl Levin (D-MI)--held a hearing yesterday to determine the “origins of aggressive interrogation techniques” on foreigners held in U.S. custody. Haynes, who helped justify the use of coercive interrogation techniques, was the headlining witness and the sole member of the hearing’s third and final panel.

In an ironic twist, Haynes faced some aggressive interrogation of his own. Haynes’ only allies yesterday were his criminal defense lawyers and the three words he used to skirt question after question: “I don’t recall.” His evasion drew occasional jeers from the protesters in attendance, who were clad in orange jump suits and black hoods. And the protesters—not to mention Haynes--were probably happy to see that the senators on the committee used more relaxed interrogation techniques than the ones Haynes signed off on.

But that’s not to say the senators let him off easy.

As Haynes’ selective amnesia regarding the use of coercive techniques (like sensory and sleep deprivation, stress positions, threats with dogs, and forced nudity) kicked in, so did the disgust of the committee members. Senators Jack Reed (D-RI) and Claire McCaskill (D-MO) would storm out angrily before the conclusion of the hearing. Before leaving in disgust, Senator Reed confronted Haynes, saying, “You did a disservice to the soldiers of this nation. You empowered them to violate basic conditions which every soldier respects — the Uniform Code of Military Justice, the Geneva Convention...Don’t go around with this attitude of you’re protecting the integrity of the military. You degraded the integrity of the United States military.” Even the conservative Senator Graham wouldn’t give Haynes a free pass.

Given Haynes’ general refusal to meaningfully answer questions, honestly or otherwise, the only true relief to be had is the knowledge that this man isn’t serving on one of America’s most influential courts. It is mind-boggling that Haynes, who hasn’t expressed an ounce of repentance for his actions in 2002, came so close to that kind of power.

Yesterday’s proceedings kept going back to the minutes of an October 2002 meeting in Guantanamo Bay regarding interrogation techniques. CIA counterterrorism lawyer Jonathan Fredman candidly and coldly explained to intelligence and military officials that torture was all about "perception," and, “If the detainee dies, you’re not doing it right.” Given his participation in the development and approval of cruel interrogation methods that clearly contravene U.S. and international law, and his unrepentant stance yesterday, it seems obvious that Haynes would have brought that same lack of compassion and regard for the rule of law with him to the Fourth Circuit.

Yesterday’s hearing was another reminder that we must tirelessly monitor the judicial nominations put forth by the executive branch. Had Haynes been confirmed, the moral standing of our nation, along with the civil rights of American and foreign citizens, would certainly have been diminished. And that’s a chilling vision we should never ignore.

Daily Dose

• Armed Services Committee Talks Torture [WP, WSJ, NYT]
• Editorial: Abu Ghraib? Doesn’t Ring a Bell [WP]
• SCOTUS to Decide if Ashcroft & Co. Protected from lawsuits [WP, LA Times, NYT]
• The so-called FISA Compromise [The Hill, CBS News, National Journal]

Republicans Halt Senate Business…Again.

Republicans on the Senate Judiciary Committee are continuing to hold-up proceedings in an effort to further their radical court-packing agenda. Today, Republican members of the committee have once again invoked the so-called “Two Hour Rule” to halt important hearings on the Federal Judgeship Act of 2008. Their goal: to force Chairman Patrick Leahy (D-VT) and his colleagues to advance President Bush’s most controversial circuit court nominees.

In a statement released today by Sen. Leahy, the chairman of the Judiciary Committee said that “it would appear to an objective observer that Republicans believe they were elected to the United States Senate to thwart the oversight and legislative efforts of this body. This now all too familiar pattern is childish and serves no good purpose.”

While Senate Republicans accuse their Democratic colleagues of playing partisan games on judges, it appears that it is the Republicans who are trying to push an election-year row on the issue. As Sen. Leahy said in his statement, “Instead of turning their attention to issues affecting the daily lives of the people who have sent them to Washington, [committee Republicans] appear more interested in embroiling this chamber in petty, partisan politics.”

Inquiries Move Forward Concerning DoJ Politicization

Justice Department investigations into the dismissal of nine US attorneys – allegedly for political reasons – have led officials to convene a grand jury inquiry into whether the actions of the department might be deemed criminal. The Washington Post and the New York Times are reporting that the grand jury has been empanelled to investigate claims made by former head of the Civil Rights Division Bradley Schlozman that he had been pressured to pursue a partisan agenda while moving forward with certain prosecutions.

According to reports, the grand jury is examining discrepancies in testimony provided by Mr. Schlozman who originally told a Senate committee last June that “while he was acting United States attorney in Kansas City, a Justice Department supervisor ‘directed’ him to bring an indictment in a voter fraud case against a liberal group.” Mr. Schlozman then “clarified” his statement some days later in a letter, writing that his decision to pursue those charges was his alone and that he took “full responsibility.”

The New York Times claims that an attorney speaking on the condition of anonymity – grand jury proceedings are supposed to be secret – said that the issue at hand is whether department officials have been truthful in their responses to congressional inquiries.

While grand jury proceedings do not necessarily mean that criminal charges will be brought, this is still a promising sign that Justice Department officials are finally taking allegations of politicization seriously. Ensuring that those who testify provide honest and accurate information is essential to rooting out any potential corruption at this critical institution.

We can only hope that Justice Department officials will apply the same standard when considering whether to move forward with contempt charges for those who refuse to respond to congressional subpoenas on the issue. Until now, Attorney General Michael Mukasey has refused to enforce contempt of Congress citations for Bush administration officials. Not only is it important to ensure that those who testify are truthful, Congress must also be able to compel those with critical information to testify if its investigations are truly to be of any value.

The Week Ahead

Well, things keep moving along as we head toward the July 4th holiday, the accompanying Senate recess and the end of the Supreme Court's 2007/2008 term. Here are what we anticipate being the highlights of this week.

After a busy week with the Boumediene v. Bush decision, the Supreme Court still has a few more decisions to release before the end of the term, notably the DC gun case. Though the Court released another 5-4 opinion, this one addressing visas and immigration status, they did not announce any additional decision days this week, so we'll have to keep waiting to see what next Monday brings.

Meanwhile, Sixth Circuit nominees Helene N. White and Raymond Kethledge, who were approved by the Senate Judiciary Committee last Thursday, face a vote on the Senate floor. While nothing is set in stone, we anticipate that the vote will take place this week, and will almost certainly occur before the July 4th recess. We also anticipate more election-year grandstanding and rhetoric from Senate Republicans, but that's really nothing new.

Finally, William "Jim" Haynes II—the former General Counsel for the Department of Defense who helped develop the legal justification for the use of torture in interrogation of terror suspects—will testify at an open Senate hearing in front of the Committee on Armed Services tomorrow at 9:30 a.m. Haynes is also a former nominee to Fourth Circuit Court of Appeals; his nomination was ultimately withdrawn in the face of widespread opposition.

The hearing is Part I of an inquiry into the treatment of detainees in U.S. custody, specifically on the origins of aggressive interrogation techniques.

Of course, anything might happen--things can often heat up in the weeks just before a recess, so we here at Justice Watch will be sure to keep you posted.

Repudiating Presidential Power

Jonathan Mahler’s piece in the New York Times yesterday highlights what might be easy to overlook about the SCOTUS of recent years: they have broken with the White House when it comes to matters of executive power and national security . (Well, at least SOME members of the court have.)

As demonstrated by last Thursday’s Boumediene v. Bush decision—which restored the writ of habeas corpus for detainees at Guantanamo Bay in a 5-4 ruling —the Supreme Court has not hesitated to challenge the opinion and viewpoint of President Bush. In fact, according to Mahler, Boumediene was the fourth time the Court has defied the president in such decisions. Why the seeming change?

Well, it isn't because Chief Justice Roberts had his justices take a crash course on national security and war studies. Nor is it that the court simply has more gumption to stand up to the president than it ever has before. Geoffrey Stone, a University of Chicago law professor, contends that “it’s less about the court and more about the executive.”

In other words, the Bush White House’s overly aggressive efforts to chip away at the Constitution’s integrity have spurred an equal and opposite reaction from the Supreme Court (or, again, at least some members of the Court) . The court’s actions (or reactions) suggest that Bush’s executive branch has fought harder than any other to weaken the Constitution, or even circumvent it altogether . It’s a troubling approach, to say the least. But there is some solace to be had in the fact that the Supreme Court, even one with a decidedly conservative bent , has fought to preserve these fundamental rights. Of course, it was a 5-4 decision, so the future of the Court hinges on a very narrow margin. It won't take much for the justices who embraced such expansive views of executive power (you know who you are, Chief Justice Roberts and Justices Scalia, Thomas, and Alito) to assert their vision of the law.

There are still more enemy combatant issues that could face the Supreme Court in the foreseeable future. Boumediene was a critical victory and we must do all we can to ensure that when and if the Court is faced with another threat to the Constitution, it will once again push back against unchecked executive power.

Daily Dose

• Habeas Ruling Illuminates Court’s Makeup [WP, ABA Journal, WP Editorial]
• Editorials: Upholding of Habeas a Positive Step [Charlotte Observer, Detroit Free Press, Miami Herald]
• Editorial: Why This Court Keeps Rebuking This President [NYT]
• Editorial: A Case of Politics [NYT]
• State of the Surveillance Bill [WP, NYT Blog]
  

High Court’s Habeas Decision: A Closer Look

Alliance for Justice has released its analysis of yesterday’s Supreme Court decision determining that the hundreds of detainees being held at Guantanamo Bay have the right to challenge their detention in U.S. federal courts.

Striking a huge blow to the Bush administration's aggrandizement of executive power, the Supreme Court has issued a 5-4 decision restoring the full scope of the ancient writ of habeas corpus and reasserting our country's commitment to its core constitutional principals. Writing for the majority, Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg, and Breyer, struck down the provisions of the Military Commissions Act and the Detainee Treatment Act that purported to strip federal courts of jurisdiction over habeas petitions by non-citizens who have been labeled "enemy combatants" by the executive branch…The Court held that the President may not circumvent the Constitution's requirement that the detainees be given a fair hearing before an impartial judge, and in doing so have paved the way for people who have been held for six years without charge to finally get their day in court.

To read our entire report on the Boumediene decision, click here.

Daily Dose

• Gitmo Habeas Decisions [WP, WP, LA Times]
• Editorial: Justice 5, Brutality 4 [NYT]
• Next Step For Gitmo [NYT, AP]
• Sixth Circuit Senate Confirmations [FOX News, Detroit News]
• Puryear’s Judicial Nomination in Peril: AFJ in the News [Tennessean]
• Analysis: Court’s Course in President’s Hands: AFJ in the News [AP]

Partisan Battle Rages On in Committee Vote

The Senate Judiciary Committee saw more partisan acrimony today over the vote on Sixth Circuit Court of Appeals nominees Raymond Kethledge and Helene White. The nominees, whose hearings were held on May 7th, were originally intended by Senate Majority Leader Harry Reid (D-NV) to fulfill his commitment to process three circuit court nominees before the Memorial Day recess – G. Steven Agee’s confirmation to the Fourth Circuit filled the third slot.

Republican members of the committee objected to scheduling a vote however, claiming that Judge White’s nomination was rushed through without sufficient time to examine her record. Opposition at her hearing centered around the fact that the ABA had not yet released its revised rating of her qualifications – despite the fact that she had received a “qualified” rating in 1997 when she was originally nominated for the seat.

Both judges made it out of committee today, but the vote on Judge White was along mostly partisan lines. Raymond Kethledge received a unanimous voice vote, but eight Republicans, including Ranking Member Arlen Specter (R-PA) voted against Judge White. Committee Chair Patrick Leahy (D-VT), angered by Republican opposition to one of their own nominees, said that because she had been nominated by both a Democratic and Republican president, her nomination should have received a “consensus confirmation.”

Sen. Orrin Hatch (R-UT), who chaired the committee in 1997 when Judge White was initially nominated to the seat by President Clinton, was the only Republican on the committee to support her confirmation. His colleagues still contended that they were not given ample time to review her record before the vote. Their complaint rings hollow however, considering that after her nomination by President Clinton, her bid lagged for over three years, longer than any nominee in Senate history.

Alliance for Justice President Nan Aron said in a statement today that the actions of committee Republicans “clearly demonstrate a desire to not only leverage the judiciary as an election-year issue, but also to pack the courts with like-minded ideologues. By applying a double standard in their assessment of nominees, Republicans turned White’s confirmation hearing into a witch hunt, despite giving repeated passes and deference to other nominees with acceptable conservative bona fides, including Sixth Circuit nominee Raymond Kethledge who was voted out of committee today by voice vote.”

SCOTUS Releases Long-Awaited Habeas Decisions

The Supreme Court released two decisions – with mixed results – today regarding habeas corpus rights of those detained by the government in its “War on Terror”. In Boumediene v. Bush, the Court determined in a split 5-4 decision that those being held at Guantanamo have a constitutional right to pursue relief through federal habeas petitions. Justice Anthony Kennedy, writing for the majority, said that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

The four dissenters, led by Chief Justice John Roberts, took issue with this claim and in their written dissents said that the Court was overruling “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Justice Scalia, who read his dissent from the bench, said that “the nation will live to regret what the court has done today.”

Unfortunately, in the joint case of Munaf v. Geren and Geren v. Omar, the Court unanimously determined that United States citizens detained abroad by United States forces do have the right to petition for habeas relief in American courts, but that there is nothing stopping the U.S. government from turning them over to another government’s forces, in order to prevent their release.

Alliance for Justice released a statement this morning praising the Boumediene decision and warning that the delicate balance of the Supreme Court is further highlighted by this split decision. We will post a more in-depth analysis of today’s decisions later this afternoon. Stay tuned…

Daily Dose

• Editorial: Justice Hillary Clinton? [LA Times]
• The Supreme Court on Gitmo [AP]
• Congress Talks FISA [The Hill]
• Stunts on the Senate Floor [FOX News, Washington Independent]
• Leahy Criticizes Supreme Court Rulings [UPI]

GOP Conniption Over Judges Continues

Senate Republicans are continuing their procedural strong-arm tactics in an effort to force confirmation votes on the president’s most controversial circuit court nominees. In this morning’s session of the Senate Judiciary Committee, Republican members invoked Rule XXVI, aka "the two-hour rule” to cut short the first of a series of hearings on the importance of the United States Supreme Court.

This is the second time in two days committee Republicans have used the tactic; they employed it yesterday to cut short a Judiciary Committee hearing on torture. Senator Sheldon Whitehouse (D-RI) reportedly observed that he regretted the rule was invoked again today, and referred to the machinations as "an embarrassment on the part of my institution."

By invoking the rule – which states that no committee may conduct business after the full Senate has been in session for two hours without unanimous consent – committee Republicans have almost managed to call off hearings scheduled for today on four of President Bush’s own district court nominees. What’s that saying about cutting off your nose to spite your face?

Today’s shenanigans come just days after Senate Republicans effectively killed the Senate’s greenhouse emissions bill as payback for what they see as Sen. Reid’s refusal to push through three circuit court nominees before Memorial Day recess. Of course, Sen. Reid rightly notes that it was Republican obstructionism that prevented him from being able to move the nominees.

Clearly, Senate GOPers are gearing up for an election year row over judges. They are practically salivating over the thought of another vacancy on the Supreme Court. Recent posts on both the American Spectator Blog and ConfirmThem have suggested that Bush should be ready to nominate a new justice on the off chance that “Justice Stephens [sic], in his late 1980s [sic]…wants to go out the way he came in, under a Republican president.”

Maybe Senate Republicans should focus more on doing the work of the American people than on putting on another election year edition of Political Theater.

Daily Dose

• DOJ Chips in to Bush-linked Organizations [USA Today, ABC News]
• Harsh Interrogation Tactics Draw More Criticism (and an Investigation) [NYT, LA Times, The Hill]
• Kucinich Introduces Impeachment Articles [WP, Plain Dealer]

Senate Judiciary Committee Slow but Steady

The Senate Judiciary Committee is keeping busy this week. Despite all the hype about Senate confirmation battles, the Committee will hold hearings this week on four district court nominees: Paul G. Gardephe for the Southern District of New York, Kiyo A. Matsumoto the Eastern District of New York, Cathy Seibel for the Southern District of New York, and Glenn T. Suddaby for the Northern District of New York.

This Wednesday also marks the first of a series of hearings meant to highlight the importance of the United States Supreme Court. This week’s session is titled, “Short-change for Consumers and Short-shrift for Congress? The Supreme Court’s Treatment of Laws that Protect Americans’ Health, Safety, Jobs and Retirement.” A mouthful yes, but certainly a worthwhile topic – especially considering the many pro-business decisions coming out of the Roberts Court.

Finally, on Thursday, the Committee has scheduled votes on Sixth Circuit Court of Appeals nominees Helene White and Raymond Kethledge, as well as Michigan District Court nominee Stephen Murphy. While these nominees' hearings were held over a month ago, Senate Republicans objected to holding votes on their nominations pending a new ABA rating for Judge White, who was rated "Qualified" when she was initially nominated to the court in 1997 by President Bill Clinton.

Meanwhile, the entire Senate voted to confirm three district court nominees today, including Mark S. Davis for the Eastern District of Virginia, David Gregory Kays for the Western District of Missouri, and Stephen N. Limbaugh, Jr. for the Eastern District of Missouri.

We will be sure to keep you updated on any and all new developments.

Daily Dose

• Supreme Court Rejects 'Class of One' Argument [NYT, WP, LA Times]
• High Court Could Hear Voting Act Challenge [Clarion-Ledger]
• Supreme Court Smoking Stalemate Continues [NYT, Christian Science Monitor]

Class of None

In yet another case with implications for workers across the country, the Supreme Court today released Engquist v. Oregon Department of Agriculture, a 6-3 decision limiting public employees’ ability to sue for workplace discrimination. Chief Justice Roberts authored the majority opinion, joined by Justices Scalia, Kennedy, Thomas, Breyer, and Alito. The ruling carves out an exception to the Equal Protection Clause for individual public employees who claim they were intentionally treated differently than other similarly situated employees, even though the employer had no “rational basis” for the differing treatment. Nine federal appeals courts had previously ruled that this Equal Protection right—called a “class of one” claim because it does not rely on proving discrimination based on membership in a class like race, sex, religion, or national origin—applied to employees in the public sector.

In support of today’s decision, Chief Justice Roberts says, “we have often recognized that government has significantly greater leeway in its dealings with citizen employees.” He attempted to distinguish contrary Supreme Court precedent, pointing to the difference between the government in its role as a regulator and the government acting as an employer. In throwing out Ms. Engquist’s jury award and exempting public employers from this kind of discrimination claim, Chief Justice Roberts said the exception was necessary to stop “undue judicial interference.” The majority’s reasoning relied heavily on a familiar legal bogeyman—opening the proverbial floodgates to lawsuits by aggrieved workers.

But three justices were not swayed by fears of floodgates. Justice Stevens, joined by Justices Souter and Ginsburg, warned in dissent, “In sum, there is no compelling reason to carve arbitrary public-employment decisions out of the well-established category of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions.” The dissenters criticized the majority for “refus[ing] to give effect to the congressionally mandated remedy” and “carv[ing] a novel exception out of state employees’ constitutional rights.” Together with the Court’s decision in Garcetti two years ago, limiting First Amendment protection for government whistleblowers, Justice Stevens points to a recent trend of decisions undermining the rights of public employees. He counters the majority’s “floodgate” justification saying, “Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection 'class of one' claims, the Court should use a scalpel rather than a meat axe.”

It should not surprise court-watchers that the most conservative justices voted to limit the rights of workers. Justice Alito, for example, had a long and reliable history of doing just that before he was even nominated to the High Court. But the reasoning behind the decision contradicts the method of constitutional interpretation espoused by the Court’s “textualists.” As the dissent points out, the majority’s decision “creates a new substantive rule excepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State.” Remind us where the words “except public employees” appear in the Constitution?

Many of these same justices refused to consider the practical effects of their decisions last term when they eviscerated civil rights laws and the promise of Brown v. Board of Education in Ledbetter and the school integration cases. Perhaps the most important lesson from this decision is that real world consequences only matter when it’s convenient.

Daily Dose

• Supreme Court Will Review Tobacco Case [AP, Oregonian]
• Lawmakers Urge Special Counsel Probe of Harsh Interrogation Tactics [WP]

Real Life Rendition

The Justice Department’s ethics office is investigating the role that department lawyers may have played in the 2002 rendition of Maher Arar, a Syrian-born Canadian who was mistakenly placed on a terrorism watch-list. The details of the case, which according to the New York Times, provided the inspiration for last year’s film Rendition, outline the extraordinary constitutional abuses that have been perpetrated under the auspices of the “War on Terror.”

Mr. Arar was detained by American immigration officers during a layover in Kennedy International Airport and sent to Jordan where he was later released to Syrian authorities. According to statements, he spent a year in Syria and endured beatings with metal cables before finally being released and sent back to Canada in 2003.

The Canadian government, which admits that his name was added to its terrorist watch-list erroneously, eventually reached a settlement with Mr. Arar for $10.3 million. The American government, however, has refused to acknowledge any wrongdoing and continues to refuse Mr. Arar entry into the United States.

During a congressional hearing yesterday, Department of Homeland Security Inspector General Richard Skinner acknowledged that the investigation into Mr. Arar’s treatment spent four years in limbo, until new evidence came to light in 2007. However, Skinner still contended that the United States acted properly in refusing Arar entry – technically required for his layover – because of his inclusion on the watch-list.

The investigation's conclusions deviated from Mr. Skinner's though. It claimed that a more prudent resolution would have been to send Mr. Arar back to Canada or Switzerland, where his flight originated. According to the Times, Mr. Skinner even acknowledged that the government's actions were “very questionable,” and “that he ‘could not rule out’ that Mr. Arar was sent to Syria with the intention of having him questioned under torture about possible connections to terrorists.”

Numerous policies have come to light lately exposing the extraordinary excesses of the Bush administration in the name of the “War on Terror.” With the start of military tribunals for five 9/11 suspects this week and the a Supreme Court decision on habeas corpus expected any day, it is clear just how far this administration has attempted to expand executive power. To learn more about this issue, check out our website at http://www.afj.org/connect-with-the-issues/expansion-executive-power.html.

Daily Dose

• Rendition Case Resurfaces [NYT, LA Times, AP]
• Siegelman Sentence Appeal Dropped [AP, UPI]
• Climate Bill Officially Blocked by Partisan Ploy [AP]

Our Courts: Coming to a Game Station Near You

In a day when less than half of all Americans can name a single member of the Supreme Court, former Justice Sandra Day O’Connor unveiled a new way to educate the public about the courts: a video game. Addressing the Games for Change conference yesterday, O’Connor, who was the first female justice appointed to the nation’s highest court, presented the new game called “Our Courts” – which, according to Reuters, is intended to “teach children how courts work.”

While the 78 year-old former justice admitted that she was surprised to be addressing a digital gaming conference, she has focused much of her efforts lately on educating the public about the importance of our judiciary. She says that she is particularly concerned with recent outcries against so-called “activist judges.”

In recent years I've become increasingly concerned about vitriolic attacks by some members of Congress, some members of state legislatures and various private iterest groups…on judges. We hear a great deal about judges who are activists – godless, secular, humanists trying to impose their will on the rest of us. Now I always thought an activist judge was one who got up in the morning and went to work.

Asked if she herself played videogames, Judge O’Connor apologized, admitting that she does not. She acknowledged however, that she has observed the importance technology plays in educating youth through her own grandchildren.

Daily Dose

• Senate Shut Down Over Judges: AFJ in the News [The Hill]
• Mitch McConnell’s Stall Tactics [AP via Newsweek, Washington Times, SF Chronicle, The Hill]
• Editorial: Take Me Out© to the Ballgame® [NYT]
• California Gay Marriage Battle and Legal Implications [LATimes, SF Chronicle]
• Editorial: Supreme Court swings good and bad [Miami Herald]
• Guantanamo Bay Tribunals [AP, LATimes, Time]

GOP Stalls Senate Procedures for Partisan Gain

This afternoon, Senate Republicans started to make good on their threats to “shut down the Senate” if their Democratic colleagues don’t speed up the confirmation of President Bush’s pending circuit court nominees. According to The Hill, “Minority Leader Mitch McConnell (R-KY) objected on the Senate floor to Reid’s efforts to speed debate on climate change by forcing the clerk to read a 500-page substitute amendment.”

Talk about a "scorched earth" policy! This latest ploy shows that GOP senators will stop at nothing to ensure a complete conservative takeover of the federal judiciary.

In a statement, Sen. McConnell said “the Democratic majority has refused to honor its commitments…and [their] that actions…have consequences.” He went on to say, “it is important that judicial emergencies are filled with qualified judges, and we will use the various tools at our disposal to ensure that those nominees and the Republican Conference are treated fairly, and that the majority takes its commitments seriously.”

But as we pointed out in yesterday’s entry, all three of the nominees that Senate Majority Leader Harry Reid (D-NV) and Judiciary Chair Patrick Leahy (D-VT) attempted to process would have filled seats which have been deemed “judicial emergencies”. Of the three Sen. McConnell prefers, only one – that to which Robert Conrad is nominated, which has been vacant since 1994 due to Republican obstructionist during the Clinton administration – received that distinction.

Sen. McConnell also seems to be unfazed by the fact that Sen. Leahy announced publicly yesterday that he intended to schedule committee votes for both pending Sixth Circuit nominees at the Judiciary Committee's next executive business meeting - which is scheduled for June 12. Their confirmations would raise the number of circuit court judges confirmed during this Congress to ten.

It is important that the public sees through this latest partisan attempt to start an election-year row over judges. Vacancies in the federal judiciary are at a historic low, and Senators Reid and Leahy have consistently showed a willingness to work with the White House in consultation over consensus nominees.

It is the Senate’s constitutional responsibility to ensure a fair and independent judiciary by thoroughly examining each nominee’s record. Senate Democrats should not be forced to abandon that responsibility by their Republican colleagues looking to hold the Senate hostage to advance a political agenda.

Mukasey’s Tenure Tainted by Partisanship

Today, Alliance for Justice released its six-month report on Michael Mukasey’s tenure as Attorney General. Despite hopes that his tenure would turn a new page for the Department, Mr. Mukasey's leadership has followed in the partisan footsteps of his forerunners, John Ashcroft and Alberto Gonzales.

During his confirmation hearing in October, Mr. Mukasey promised first and foremost to be a lawyer for the people of the United States. He swore to uphold the Constitution and to exercise independent judgment. Both Democrats and Republicans proclaimed their belief that Mr. Mukasey would turn a new page for the Department….[but] his actions have demonstrated that, like his predecessors, Mr. Mukasey is most interested in defending the Bush administration’s lawless actions, not in exercising independent judgment.

To read AFJ’s entire report on Michael Mukasey’s tenure at the Department of Justice, click here.

Daily Dose

• The Supreme Court’s Money-Laundering Decisions [WP, NYT]
• Rep. Waxman Seeks Access to Bush, Cheney Interviews On CIA Leak [LATimes]

Daily Dose

• Editorial: Will bench strength be decisive? [Indy Star]
• Congress Watchdog Wants Documents from Bush, Cheney Interviews [TPMMuckraker]
• Voters will decide on gay marriage [LA Times]

Wall Street Journal Has Selective Memory

In yet another editorial published today, the Wall Street Journal has criticized Senate Democrats for the confirmation pace of President Bush’s circuit court nominees. Specifically, today’s piece accuses Senate Majority Leader Harry Reid (D-NV) of backing out of a deal struck with Senate Minority Leader Mitch McConnell (R-KY) to confirm three judges before the Memorial Day recess.

Despite the fact that two of the three nominees Sen. Reid and Senate Judiciary Committee Chair Patrick Leahy (D-VT) attempted to process were held up by Republican committee members, the Journal’s editorial board inexplicably concluded that Sen. Reid was to blame for the failure to confirm three by the holiday, writing that “with the Majority Leader, you have to read the fine print of any handshake.” While we have certainly disagreed with many of the Journal’s interpretations of issues surrounding judicial selection, this latest editorial shows a complete disregard for the context and facts surrounding last month’s Senate battle.

The editorial board’s assertion that the deal struck between Sen. Carl Levin (D-MI) and the White House regarding two Sixth Circuit nominees was not intended to count towards the three agreed to by Senators Reid and McConnell is dubious. At no time during last month’s detente did Sen. Reid promise that he could confirm more than three nominees. In fact, in his floor speech announcing the deal, the Majority Leader clarified his position by saying that he would do what he could to ensure the confirmation of three judges – certainly no promise there.

The Journal also suggests that Sen. Reid misled Senate Republicans regarding which nominees he would process – although again, nowhere in his floor speech did he designate any candidates. In truth, this complaint is likely Senate Republicans licking their wounds because they were left out of White House negotiations with Sen. Levin concerning the compromise on two Sixth Circuit nominees.

Sen. McConnell may have assumed that his three favorites, Peter Keisler, Steve Matthews and Robert Conrad would be the ones confirmed, but he certainly never received any public assurances from Sen. Reid. The fact that Senators Leahy and Reid decided to reward the president’s new-found willingness to compromise by considering his Sixth Circuit nominees, as well G. Steven Agee (Fourth Circuit), who had bi-partisan support from his home state senators, does not detract from their good faith attempts to fulfill Sen. Reid's agreement with Sen. McConnell.

Finally, the editorial board attempts to paint Senate Democrats as irresponsible, stating that Sen. Reid’s “strategy is… to leave as many vacancies as possible for President Obama – never mind that four circuits are currently operating with one or more seats that count as judicial ‘emergencies.’” Interestingly enough, however, the three seats which Sen. Reid was hoping to fill – those to which Helene White, Raymond Kethledge and G. Steven Agee have been nominated – have all been classified as “judicial emergencies.” Only one of the seats that Sen. McConnell wanted to fill, that of Robert Conrad, has been given that label.

Today’s editorial is simply more fiery rhetoric from the right attempting to stir up controversy during an election year. Its writers even admitted as much when they wrote that there are “few better political fights for Republicans than over judicial nominations.” Senators Leahy and Reid have done all they can to confirm as many consensus nominees as possible. The fact that Senate Republicans are not satisfied with all of the president’s nominees cannot be blamed on Senate Democrats. It seems that it is movement conservatives like those on the editorial board of the Wall Street Journal who are trying to play games with judicial nominations, not Sen. Reid and his colleagues.

White House Sticks To The Shade

It appears the Bush administration intends to continue stymieing congressional efforts to shed light on politicization at the Justice Department. Despite efforts by the House Judiciary Committee to question former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten, the president and Attorney General Michael Mukasey have remained defiant and continue to invoke a broad notion of executive privilege – forcing the committee to issue subpoenas and, when those subpoenas were ignored, vote to hold the officials in “contempt of congress.”

Although the contempt vote passed the House on Feb. 19, Attorney General Mukasey still refuses to enforce the subpoenas, leading the House Judiciary Committee to file suit in federal court. On Thursday, the committee filed a brief in response to one filed by the attorney general on May 9 which claimed that the it had no standing, or right to sue to force Miers or Bolten to give testimony concerning the firing of nine US attorneys in 2006. Congressional Quarterly also reports that a group of bipartisan lawmakers is backing the committee, filing a friend-of-the-court brief in which the lawmakers argued that the committee had “made an ample showing of the need to obtain the subpoenaed documents and testimony.”

Yet another former White House advisor, Karl Rove, is also refusing to testify before the committee, this time regarding allegations of selective prosecution of former Alabama Governor Don Siegelman. Despite attempts by the Committee Chair John Conyers (D-MI) to force Rove to respond to its inquiries, Rove has also continued to cite executive privilege. A New York Times editorial today called his invocation of the privilege “weak” and “shamefully cynical,” stating that “drumming up political prosecutions in the Justice Department, and talking about it with operatives in Alabama” is certainly “not privileged.”

Alliance for Justice has consistently criticized politicization at the Justice Department and called on Attorney General Michael Mukasey to separate himself from the policies of Alberto Gonzales and John Ashcroft. Unfortunately, what we, and the American people, have gotten is more of the same – secrets covered up by avoiding congressional oversight and making blanket claims of executive privilege. Both chambers of Congress should continue to investigate allegations of partisan abuse and Attorney General Mukasey should support their efforts to force those who are unwilling to testify.